Virginia Attorney General Kenneth Cuccinelli speaks about the ruling from US District Judge Henry E. Hudson that declared the foundation of President Barack Obama's health care law unconstitutional, Monday. A district judge in Florida will hear a case brought against the health-care reform bill on Thursday, but many say the final decision will be made by the supreme court.

Alexa Welch Edlund/Richmond Times-Dispatch/AP

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Miami

The escalating legal battle over the constitutionality of President Obama’s health-care reform law moves Thursday to Florida and to a federal judge who has already expressed skepticism about the statute.

The judge’s comment was made while declining to dismiss the lawsuit at an early stage. It does not necessarily telegraph how he might rule when considering the full merits of the issue.

On Thursday, Judge Vinson will become the fourth federal judge to formally examine the constitutionality of the health-care reform law. Two judges – in Detroit and Lynchburg, Va. – have upheld the law. On Monday, a judge in Richmond, Va., ruled a key section of the law unconstitutional.

The rulings are setting the stage for what legal analysts predict will be an eventual showdown at the US Supreme Court.

The primary issue raised in all four cases has been the reform law’s so-called individual mandate requiring that every American purchase a government-approved level of health insurance or pay a penalty.

Expanding the pool

The measure is aimed at expanding the number of healthy individuals in the insurance risk pool to help pay for government reforms, including the requirement that individuals with preexisting health conditions may not be refused coverage.

Their case against the Obama reform bill involves two main issues. They charge that Congress exceeded its authority under the Constitution’s commerce clause by mandating that every American must purchase private health insurance.

The lawsuit also seeks to invalidate the law on grounds that it exceeds Congress’s authority under the Constitution’s spending clause. They argue that the law’s requirement that states significantly expand Medicaid coverage is an unconstitutional form of coercion and commandeering, forcing states to take expensive actions they would prefer to avoid.

Both sides in the case have been granted one hour for argument. The hearing is set to begin at 9 a.m. in Judge Vinson’s Pensacola, Fla., courtroom.

Although the arguments relate to a modern health-care reform law passed this year, the lawyers’ presentations also echo larger themes dating to the 1930s and 1940s and the New Deal.

Ultimately, the litigation is being fought-out on a 60-year-old battleground over the expansion of federal power at the expense of the states.

Since the New Deal, the Supreme Court has generally adopted an expansive view of Congress’s power to pass new laws under the commerce clause. Within the past 15 years, the high court cut back on congressional authority in a handful of cases.

Some analysts predict it could be a close case, with Justice Anthony Kennedy potentially casting the deciding vote. But others say existing precedents favor the high court endorsing an expansive approach to legislative power under the commerce clause.

In his brief to Judge Vinson, Mr. McCollum argues that the Constitution provides for a federal government of limited powers. All power not assigned to the federal government is retained by the states and the people.

McCollum says if the courts uphold congressional power to order Americans to purchase private products, it will render federal authority limitless.

He says Congress and the Obama administration went off the constitutional rails when they sought to order Americans who don’t have health insurance to buy it or face a penalty.

Congress had the power under the commerce clause to regulate economic activity that substantially affects interstate commerce, he said. But the individual mandate seeks to regulate inactivity – not activity.

“Activity is the key in all the relevant case law,” McCollum writes in his brief.

“The commerce power permits Congress only to regulate the activities of individuals who already are in a particular market or engaged in activity that is subject to federal regulation,” he said.

Government lawyers counter in their brief that the Supreme Court has upheld a view of commerce clause power that permitted Congress to pass laws that are an essential part of a larger regulatory scheme. The health-care reform effort is such a scheme, and the individual mandate is essential to a national reform of health insurance, they said.

The government rejects the claim that individuals without health insurance are inactive. Those without health insurance will eventually need it, the government says, and by choosing not to enter the market they have undertaken an economic activity that Congress may regulate.

“Plaintiffs’ approach revives the type of categorical demarcation of Congress’s commerce powers that the Supreme Court abandoned in the 1930s,” the government brief said. It added that the states are arguing for an exclusion that appears nowhere in commerce clause jurisprudence.

“No case – ever – has imposed such a limitation on Congress’s power to ameliorate substantial adverse effects on interstate commerce,” the government’s brief said.